Case Number: BC505456 Hearing Date: February 17, 2015 Dept: SEC
DUVALL v. LISA LOUISE GOLT, ET AL.
CASE NO.: BC505456
HEARING: 02/17/15

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TENTATIVE ORDER

Defendant CHRISTOPHER J. ALVAREZ’s demurrer to the Complaint is OVERRULED. C.C.P. § 430.10(e).

Defendant ALVAREZ demurs to the causes of action for deprivation of civil rights in violation of Civil Code § 52.1 (1st), negligence (2nd), assault and battery (3rd), and false arrest without warrant by private citizen (4th), which are the only causes of action brought against ALVAREZ.

Procedural Issue

No proof of service is attached to the demurrer. Furthermore, no opposition has been filed by Plaintiff. Proper notice is required on the other party or attorney. C.C.P. §§ 1005, 1010. The Court inquires as to whether Plaintiff was on notice of this demurrer.

Untimeliness of Demurrer

Pursuant to C.C.P. § 430.40(a), a person against whom a complaint has been filed may, within 30 days after service of the complaint, demur to the complaint. However, C.C.P. § 430.40(a) is permissive, not mandatory, which gives the court discretion to grant or deny an untimely filed demurrer as long as the substantial rights of the parties are not affected. Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.

The Complaint was filed on April 9, 2013 and this instant demurrer was filed on November 18, 2014. Thus, this demurrer is well over the 30-day limit to bring a demurrer. However, as the demurrer is unopposed, the Court considers the merits of the demurrer.

Deprivation of Civil Rights in Violation of Civil Code § 52.1

Civil Code § 52.1 authorizes an action at law, a suit in equity, or both, against anyone who interferes, or tries to do so, by threats, intimidation, or coercion, with an individual’s exercise or enjoyment of rights secured by federal or state law.

ALVAREZ demurs to the first cause of action on the ground that Civil Code section 52.1 applies only to government entities or agents thereof. However, the case law ALVAREZ cites fails to support this contention. See Venegas v. Cnty. of Los Angeles (2004) 32 Cal.4th 820; Jones v. Kmart Corp. (1998) 17 Cal.4th 329. Rather, case law supports that § 52.1 does not require “state action,” but instead applies to private as well as government actors. Cnty. of Los Angeles v. Superior Court (2009) 181 Cal.App.4th 218, 237. Thus, ALVAREZ’s argument that he cannot be liable for violating Civil Code § 52.1 as he is only referred to as an individual doing business as “Fugitive Recovery Services” (Compl., ¶ 18) and not as a government entity or actor is without merit. As such, ALVAREZ’s demurrer on this ground fails.

The demurrer as to the first cause of action is OVERRULED as to Defendant CHRISTOPHER J. ALVAREZ only.

Negligence

Plaintiff has alleged sufficient facts to establish a negligence cause of action against ALVAREZ as negligence need only be alleged in general terms. Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97, 101. The Complaint alleges that “Defendants owed a duty of care to Duvall to act reasonably and not to surrender or arrest him…”, Defendants breached their duty, and Plaintiff was harmed. Compl., ¶¶ 45-47.

Defendant argues that the only “injury” alleged against ALVAREZ was that ALVAREZ arrested and surrendered Plaintiff to jail. Compl., ¶ 39. ALVAREZ argues that this injury cannot be maintained against him because he is not an agent of the government. However, the allegations in the second cause of action are with regard to Penal Code § 1300, which refer to bail agents and bounty hunters—not necessarily government agents. Compl., ¶ 45. As such, the injury Plaintiff alleges he suffered due to the breach of Penal Code § 1300 may be proximately caused by ALVAREZ’s arrest and surrendering of Plaintiff to jail. Compl., ¶¶ 39, 45-47.

The demurrer as to the second cause of action is OVERRULED as to Defendant CHRISTOPHER J. ALVAREZ only.

Assault and Battery

Plaintiff has alleged sufficient facts showing that defendants, including ALVAREZ, threatened to and actually did touch him in a harmful or offensive manner without Plaintiff’s consent. Compl., ¶¶ 49-51. While an “arrest,” whereby a person is taken into custody may be made by a private person, this arrest must be in manner authorized by law. Penal Code § 834. Custody or restraint authorized by law may be effected by actual or constructive seizure or detention of the person to be arrested, and the person arrested may only be subjected to such restraint as is reasonable for his arrest and detention. People v. Superior Court (1973) 35 Cal.App.3d 1, 5 (citing Penal Code §§ 834, 835). Plaintiff alleges that defendants, which includes ALVAREZ, threatened to touch him and actually did touch him with the use of rubber bullets, tasers, and pepper spray. Compl., ¶ 49. ALVAREZ’s arguments that arrests may be made by private citizens and that he is not a government actor are not enough to show that Plaintiff has not alleged sufficient facts to constitute a cause of action for assault and battery.

As such, the demurrer as to the third cause of action is OVERRULED as to Defendant CHRISTOPHER J. ALVAREZ only.

False Arrest Without Warrant by Private Citizen

The elements for false arrest include: (1) an arrest without a warrant; (2) followed by imprisonment; and (3) damages. Levin v. United Airlines (2008) 158 Cal.App.4th 1002, 1018. Here, Plaintiff alleges that he was arrested without a warrant, held in jail for 16 hours, and suffered harm, including past and future medical expenses, pain and suffering, physical and emotional distress, embarrassment, and mental anguish. Compl., ¶¶ 39, 54, 55. Plaintiff has alleged sufficient facts to constitute a cause of action for false arrest. As such, the demurrer as to the fourth cause of action is OVERRULED as to Defendant CHRISTOPHER J. ALVAREZ only